DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

SMC
Docket No: 02021-99
12 August 1999

Dear Staff Se~1~I~’’

This is in reference to your application for correction of your naval record pursuant to the
provisions of title 10 of the United States Code, section 1552.

You requested removal of all reference to your special court-martial (SCM) of 4 April 1997,
removal of documents relating to your relief for cause from recruiting duty, and restoration of
your 8411 (recruiter) Military Occupational Specialty (MOS). Headquarters Marine Corps
(HQMC) has removed all documents directly concerning the SCM, and they will remove
references to the SCM from the documents concerning your relief for cause.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 12 August 1999. Your allegations of error and
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this Board. Documentary material considered by the Board
consisted of your application, together with all material submitted in support thereof, your
naval record and applicable statutes, regulations and policies.
considered the advisory opinions furnished by HQMC, dated 24 May 1999, and the Marine
Corps Recruiting Command, dated 12 July 1999, copies of which are attached. They also
considered your letter dated 26 July 1999 with enclosures.

In addition, the Board

After careful and conscientious consideration of the entire record, the Board found that the
evidence submitted was insufficient to establish the existence of probable material error or
injustice warranting removal of your relief for cause or restoration of your MOS.
In this
connection, the Board substantially concurred with the comments contained in the advisory
opinions. Accordingly, your application for relief beyond that effected by HQMC has been
denied. The names and votes of the members of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such that favorable action cannot be
taken. You are entitled to have the Board reconsider its decision upon submission of new and
In this regard, it is
material evidence or other matter not previously considered by the Board.

important to keep in mind that a presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval record, the burden is on the
applicant to demonstrate the existence of probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosures

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 NAVY ANNEX

WASHINGTON, DC 20380—1175

IN REPLY REFER TO:

1070
JAM3
24P~Y1999

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BOARD FOR CORRECTION

RECORD

.~

lATION

USMC

CASE OF ~

___

1.
We are asked to provide an opinion regarding Petitioner’s
request to remove from his records information related to his
conviction by summary court-martial and reinstatement of his
military occupational specialty (MOS)

as a recruiter.

2.

We recommend the requested relief be granted in part.

Background.

Petitioner served as a canvassing recruiter

Petitioner was the subject of a preliminary inquiry

3.
assigned to Marine Corps Recruiting Station, Louisville,
Kentucky.
which led to his summary court-martial conviction on 4 April 1997
for inappropriate contact with a member of the Delayed Entry
Program, in violation of Article 92, Uniform Code of Military
Justice.
Petitioner was sentenced to forfeit $1000.00 pay.
convening authority suspended all forfeitures in excess of
$250.00 pay.
On appeal, the Judge Advocate General of the Navy
set aside the finding of guilty and the sentence, and dismissed
the charge because the convening authority had not created an
adequate record of trial.

The

4.

Analysis

a.

Petitioner seeks removal from his records of all

reference to his conviction by summary court—martial.
request should be granted.
court—martial, as well as any performance evaluation’ or
personnel action that included reference to or relied on the
summary court—martial conviction as a basis for the evaluation or
action, be removed from Petitioner’s official files.

We recommend any records from the

This

We would also observe that the summary court—martial conviction

was discussed in Petitioner’s performance evaluation for the
period 970301 to 970424.
conviction, discussing it in a performance evaluation prior to a
decision on appeal was inappropriate under paragraph 4006.7b of
MCO 16l0.7D.

Because Petitioner appealed his

.

Subj:

BOARD FOR CORRECTION V

.çQRpNPPLICATION

USMC

b.

We note, however, that the Judge Advocate General’s

Thus, although those records relying on or

decision to “set—aside” the findings of guilt and sentence in
Petitioner’s case does not amount to either an acquittal or a
finding of innocence.
referencing the summary court—martial conviction should be
removed, records discussing the underlying facts without
reference to the court-martial need not be removed.
For
instance, designation of an MOS is a decision the Commandant of
the Marine Corps makes in the exercise of his discretion.
paragraph 4d, MCO l326.6C and paragraph 3l05.3a, MCO l000.6F,
Assignment Classification, and Travel Systems Manual.
Although
Petitioner’s conviction has been set aside, the underlying facts
of Petitioner’s inappropriate conduct remain, and it would be
appropriate for a representative of the Commandant of the Marine
Corps to review the underlying facts to ascertain if Petitioner’s
recruiting MOS should be voided.

~.

c.

Similarly, relieving a subordinate for cause is a
Again,

decision left to the discretion of the commander.
although Petitioner’s conviction was set aside, the underlying
facts may nevertheless support Petitioner’s relief for cause.
Once Petitioner’s record is cleansed of all references to his
summary court—martial conviction, we conclude it would be
appropriate for the Commandant of the Marine Corps to review the
cleansed record to determine whether Petitioner should have been
relieved based on his underlying conduct.

Conclusion.

5.
Accordingly, we recommend relief be granted to
the extent of ordering the removal from Petitioner’s records of
all references to his conviction at summary court—martial and all
performance evaluations or personnel actions relying upon the
conviction.
the cleansed records to determine what personnel actions might be
appropriate based on the underlying facts.

However, we recommend appropriate officials review

Acting Head
Military Justice Branch
Judge Advocate Division

2

UNITED STATES MARINE CORPS

MARINE CORPS RECRUITING COMMAND

3280 RUSSELL ROAD

QUANTICO, VA 22134-5103

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-9q

IN REPLY REFER TO

1070

A
12 Jul 99

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL

Subj ~

Ref:

RECORDS

THE CASE OF ~

(a) MMER ltr dtd 24 May 99
(b) S~~~NR

application w/enclosures

In response to reference (a), and after a careful
uest per reference (b), it is my

Returned.

1.
review of Sergean
recommendation th

2.
Although Sergean
aside due to an insu
fact that ~
substantiated,
cause.

ergea

etition be denied

icient record of trial, it doesn’t erase the

urt martial conviction was set

were investigated and

causing his Commanding Officer to relieve him for

~

3.
the assignment of the 8411 MOS.

not be now, nor in the future, allowed

uo~~l,U. S. Marine Corps
Chief of Staff
Marine Corps Recruiting Command